Standing Committee D

[Mr. Frank Cook in the Chair]

International Criminal Court Bill [Lords]

Crispin Blunt: On a point of order, Mr. Cook. In the business statement today, the Leader of the House announced that consideration on Report and Third Reading would take place on 9 May. I asked the right hon. Lady a question, pointing out that the Committee was precisely halfway through its consideration of the Bill, having reached the fifth of its 10 sittings, but had reached only the clause stand part debate for clause 2 of an 84-clause Bill. I asked her to consider rescheduling Report and Third Reading to allow us proper consideration of the important issues of principle that still have to be discussed, such as universal jurisdiction and diplomatic immunity. Such rescheduling would allow us also to continue our current discussion about the consequences of the Bill for reconciliation.
 The right hon. Lady undertook to report my concerns to the Minister in charge of the Bill. I do not know whether she has had a chance to do that, but I would like to place on the record that it seems clear that we will not be able fully to discuss important issues of principle. I hope that the Government will consider postponing the date of Report and Third Reading to allow consideration of the Bill to continue after 3 May.

Frank Cook: I am sure that the hon. Gentleman knows well that that is not a matter for the Chairman. However, he has succeeded in getting his remarks on the record.

John Battle: Further to that point of order, Mr. Cook. I, too, am disappointed, but it is not for me to decide when the Committee reports—I am simply in charge of seeing the Bill through Committee. We had agreed a programme.
 It was reported to me that the hon. Member for Reigate (Mr. Blunt) complained that we have reached clause 2 only because there have been interventions and lengthy statements from Government Members. That is not quite true. Our remarks are on the record, written down word for word. If anyone would like to count the number of words or measure the number of minutes that Government Members have spent replying to amendments, and compare those numbers with the amount of time spent moving the amendments, that might leave the Opposition with some space to reflect. We are more than happy to debate these topics in any order that the Opposition choose. The time is in their hands. We wait with interest.

Crispin Blunt: Further to that point of order, Mr. Cook—

Frank Cook: Order. We have had quite enough discussion on that point. We will not succeed in our main task, which is line-by-line scrutiny of the Bill, if we argue about the length of time that we are taking not to do it. Let us make some progress.

Crispin Blunt: On a new point of order, Mr. Cook. The Minister has inadvertently misled the Committee about my remarks and on whether I made a complaint about the conduct of Government Members. I most certainly did not, and I want to make that explicit. There is no complaint on my part about the interventions that I took from other Members. We have had a proper debate and I would not want it to be thought that there was any concern about the conduct of Government Members, which, overall, has been exemplary.

John Battle: Further to that point of order, Mr. Cook. I accept that comment. I was under a misapprehension. I say that in good faith, and I thank the hon. Gentleman for his comments.

Frank Cook: We continue in that spirit of friendship with clause 2—[Interruption.] Order. I am on my feet and I am addressing the Committee. Let us preserve the good humour, but do so within the rules. We continue with the clause 2 stand part debate. Clause 2 Request for arrest and surrender

Clause 2 - Request for arrest and surrender

Question proposed [this day], That the clause stand part of the Bill. 
 Question again proposed.

Gerald Howarth: In the spirit in which you have invited us to continue, Mr. Cook, let me say that on Tuesday the Minister was very good to acknowledge that my hon. Friend the Member for Reigate had raised several important issues. He recognises that this is an extremely important Bill.
 We are particularly concerned because of the international ramifications for our service men. We are disappointed that the Committee will not have more opportunity to scrutinise the Bill than was laid out in the programme motion. I support the contention advanced by my hon. Friend the Member for Chesham and Amersham (Mrs. Gillan) in her remarks about clause 2. I am concerned that there is no reference in the statute of Rome to reconciliation. 
 The hon. Member for Ilford, South (Mr. Gapes)—I am sorry to see that he is not in his place—referred to Chile before we adjourned this morning. I challenged his interpretation of events that took place there. For the record, I should like to refer to what has happened in Chile subsequently by quoting the former Chilean president, Eduardo Frei, who said in an interview with the Spanish newspaper ABC published on 10 October 1973: 
 ``People cannot imagine in Europe how ruined Chile under Allende was. They don't know what happened . . . The Marxists, with the knowledge and approval of Salvador Allende, had brought into Chile innumerable arsenals of weapons which they kept in private houses, offices, factories, warehouses. The world doesn't know that the Chilean Marxists''—

Frank Cook: Order. I am concerned that we might be allowing ourselves to stray into the rights and wrongs of Chilean history. Where opinion is pertinent to truth and reconciliation commissions, I am happy that the Committee should listen to it. However, I do not want to go too far down the road that the hon. Gentleman is exploring. Please be careful.

Gerald Howarth: I appreciate what you are saying, Mr. Cook, but I hope that you will allow me a little latitude to respond to the hon. Member for Ilford, South, because his points were pertinent to a better understanding of why reconciliation is important.

Cheryl Gillan: I had some difficulty marshalling my papers during this morning's sitting, but perhaps it would help my hon. Friend to know that one of the 15 truth commissions to which I referred in my earlier argument was the Rettig commission—the national commission on truth and reconciliation in Chile—which dealt with 3,428 cases of people who had disappeared or were killed, tortured to death or kidnapped, of which 2,920 were investigated in depth. The commission's work lasted for nine months and covered a period of 16 and a half years. It is important that such commissions are taken into consideration in the light of the effect on that process that may be made possible by future legislation.

Gerald Howarth: I am grateful to my hon. Friend. She has added considerably to my argument.
 There was a belief on one side in Chile that the Marxists under Allende were about to engage in a self-inflicted coup. Others, like the hon. Member for Ilford, South, take a different view.

Oona King: I have been trying to follow the logic of the hon. Gentleman's argument. Is he saying that, despite the election of President Allende, it was reasonable for a coup to take place that led deaths, murders, mutilations and torture under the ensuing regime, as is well-documented? I cannot understand his argument.
Mr. Howarth rose—

Frank Cook: Order. The Committee is beginning to do exactly what I was trying to prevent. I do not want to rehearse Chilean history and I ask all Committee members to respect my instruction.

Gerald Howarth: I know, Mr. Cook, that if I answered the hon. Lady, you would rightly chastise me. There is a difference of view, but I can tell the hon. Lady that 147 semi-automatic rifles and 10 semi-automatic carbines were found the day afterwards in the President's house—

Frank Cook: Order. The hon. Gentleman must confine himself to comments on truth and reconciliation commissions, which the hon. Member for Chesham and Amersham introduced into the debate. He should deal with those, not with Chilean history. He should not discuss the details that were presented in the 3,400 cases, but the principles involved as they relate to the Bill.

Gerald Howarth: I have no intention of going through the individual cases. I was responding to some of the observations made by the hon. Member for Ilford, South, which were not ruled out of order.
 I have, however, made my point. Essentially, there is a difference of view, as there was in Chile. It is not up to us in this country to determine how the peoples of a country that has experienced serious conflict should resolve such matters. It was not up to us to interfere in South Africa with the way in which Archbishop Desmond Tutu and the authorities ran the Truth and Reconciliation Commission. It was always part of my contention and that made in another place by my noble Friend Lord Lamont of Lerwick that it was not the job of a freelance Spanish magistrate or the Home Secretary to interfere in the reconciliation process in Chile and the case of former President Pinochet. Arguably, the reconciliation process was impeded rather than advanced by what happened on this side of the Atlantic. 
 There is an important lesson for us to learn. We must allow nations that have been through a difficult civil war or internal conflict scope to reconcile their different factions. I think that we all accept that it will not be possible to impose solutions from outside. My hon. Friend the Member for Chesham and Amersham referred to Dayton, where an attempt was made at reconciliation. In another case, the British Government urged the Government of Sierra Leone to take into their ranks people guilty of heinous crimes whom they had sought to oppose. All in all, my hon. Friend's observations carry great weight, and I hope that the Minister will be able to respond to our concerns. 
 My hon. Friend the Member for Reigate told my hon. Friend the Member for Chesham and Amersham, who had referred to Northern Ireland and the question of the IRA and the loyalists, that many of the crimes that the IRA and some of the loyalist groups had committed could be categorised as crimes against humanity as set out in the statute of Rome. Those groups could also be held to be guilty of crimes of genocide. Article 6 states: 
 ``For the purpose of this Statute, `genocide' means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 
 (a) Killing members of the group; 
 (b) Causing serious bodily or mental harm to members of the group''. 
It is perfectly clear to all of us that it would easy for an international court to argue that those on either side who had been responsible for such atrocities could be hauled before it. People in this country would greatly resent that. Some of us bitterly resent the fact that the Government gave an amnesty to some of those in the IRA who were responsible for the most horrendous terrorist crimes and who murdered friends of ours. Nevertheless, we accept that some leeway had to be given in a spirit of reconciliation if peace was to be secured in Northern Ireland.

John Battle: I am happy to discuss Northern Ireland with the hon. Gentleman. I know it well and would be able to debate with him over days and weeks, never mind hours. However, I simply want to ask him how on earth the statute and the Bill relate to Northern Ireland if they are not retrospective, and how his remarks relate to clause 2?

Gerald Howarth: On the latter point, I am surprised that the Minister thinks that my remarks about Northern Ireland do not relate to the clause, nor I do not understand why he did not intervene on my hon. Friend the Member for Chesham and Amersham who was the first to raise the issue. The Minister did not intervene on her to suggest that it was not appropriate.
 The point that Conservative Members are making is that there is no reference in the statute to reconciliation and the difficulty that the court might present—[Interruption.] I do not know what the Minister is saying, but if he wants to intervene, I will happily give way. 
Mr. Desmond Browne (Kilmarnock and Loudoun) rose—

Gerald Howarth: I give way to the hon. and expensive Gentleman.

Des Browne: I am not practising at the moment—I do only one job at a time, so this is all free.
 With respect, the hon. Gentleman draws a false analogy. To understand the statute and the structure of the Bill, one must always have in mind the principle of complementarity. Everyone who has benefited from the early release processes in Northern Ireland under the Conservative Government and under the provisions of the Belfast—or Good Friday—agreement introduced in legislation under the current Government went through the UK system of justice in the Northern Ireland courts and was convicted. None of those cases would have had any relevance to an ICC, even if an ingenious and expensive lawyer had been able to put together a complicated argument claiming that what those involved were alleged to have done or what they did in the future could fall under the jurisdiction of the court. That is not a true analogy, although it is an interesting point. 
Mr. Howarth rose—

Frank Cook: Order. I repeat once again my appeal for shorter interventions. I must also caution the Committee that we are in danger of doing on the issue of Northern Ireland what I deprecated on the issue of Chile. Let us concentrate our minds on the requirements of a line-by-line scrutiny of the Bill.

Gerald Howarth: I am glad that the hon. Gentleman feels that I made an interesting point. I was not suggesting that the ICC could be responsible for removing authority for Northern Ireland from the United Kingdom, because we have tried such things ourselves. I was saying that I fear that there are circumstances in which that could happen and that we would resent it.
 The ICC might require us under clause 2 to hand over nationals of countries that had gone through a process of reconciliation even if, in the view of the United Kingdom Government, a trial could prejudice that process. That, essentially, was my point, and I hope that the Committee understands it.

Crispin Blunt: I shall be as brief as I can, but the consequences of the Bill for truth and reconciliation is an extremely important issue. The circumstances in which a truth and reconciliation commission will be set up in any country in future are necessarily hypothetical, but we can look for example to the conflict in Armenia and Azerbaijan, which will, we hope, reach settlement at some stage—very likely after the statute of Rome takes effect. Given that many of the signatories to the statute already have universal jurisdiction, any crimes committed if that conflict continues will be subject to the jurisdiction of those countries.
 I expect that the Minister will refer to article 16, which provides that the United Nations Security Council may request a deferral of investigations. However, that depends on none of the permanent members of the Security Council exercising a veto, or on the request for a deferral being made by a majority on the Security Council to allow the national process to take place. All the examples that we have discussed—Northern Ireland, Chile and South Africa—are relevant examples of countries in which the process of truth and reconciliation has taken place. The national process gives the United Nations Security Council an opportunity to make such a requests, but the Government will not be able to rely on the United Nations Security Council to make that request, which means that there is a risk to truth and reconciliation commissions. 
 The argument can be made—I understand the purpose of the statute to be thus—that our message to dictators around the world is that there will be no way out for leaders who engage in the very serious crimes specified in the statute. There will be no hiding place for such people. We are, in a sense, saying goodbye to truth and reconciliation commissions. We are putting future dictators and people who are guilty of certain crimes in the same position as the Allied powers deliberately put the leaders of Germany in 1943 by demanding unconditional surrender. The leaders of Germany and Japan knew that there would be no negotiated settlement. One can draw that analogy. 
 If I were a victim of a crime under the statute and my country decided to establish a truth and reconciliation commission, I could decide not to accept that and take my complaint to the ICC. If a crime had been committed against me, I would expect the ICC to investigate it. If my country would not bring the perpetrators of that crime to justice, I, the victim, would expect the ICC to do that for me. 
 Every country—including, most importantly, the United Kingdom and France, who are likely to be first to sign and ratify the statute, and who have taken a leading role in policing global security since 1945—will have to face up to the great difficulty of reconciling the practical advantages of being able to engage in truth and reconciliation processes, as has been done in numerous cases, with the principled and proper position that, from now on, there will be no hiding places for people who are guilty of the crimes specified in the first part of the statute. 
 A case can be made for either position: for pragmatism and the way in which we have conducted the world order since 1945, and for the permanent members of the Security Council having a veto; or for the direction in which the statute will take us. I look forward to the Minister's reply because the Government's position is riddled with uneasy and unsustainable compromise. The inconsistency is present even in the statute: articles 27 and 98 are in direct contradiction of each other. One allows immunity, which we shall discuss later, and the other says that there shall be irrelevance of official capacity in bringing people to book for the crimes. In this debate on truth and reconciliation, I am hoping to hear from the Minister whether we are to take a pragmatic approach to diplomacy and the ability of Ministers to make decisions or whether we shall have, as the statute of Rome intends, a more idealistic approach to facing up to the serious crimes that are listed in this statute.

Cheryl Gillan: Earlier, Mr. Cook, when I was unable to get my papers in order, you promised that you would allow me to return to my second point. I thank you for that courtesy, and I shall try to detain the Committee only briefly. It is a technical point that stems from our first day of consideration in Committee. I asked the Minister about the declarations and the phrase ``none in mind''. He said in his response:
 ``We cannot go back to rake over and unilaterally rewrite the Rome statute, which has been agreed internationally. That is not the purpose of the Bill; the purpose is to sign up to it.''—[Official Report, Standing Committee D, 10 April 2001; c. 64.] 
I do not disagree with that. That was not the point I was making, and that is the premise on which I start now. 
 Clause 2 deals with arrest and surrender. Article 91.1 of the treaty states: 
 ``A request for arrest and surrender shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for it in article 87, paragraph 1 (a).'' 
Article 87.1(a) states: 
 ``The Court shall have the authority to make requests to State Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession. 
 Subsequent changes to the designation shall be made by each State Party in accordance with the Rules of Procedure and Evidence.'' 
That goes to the heart of my point. The statute says that each state party, upon ratification, will designate appropriate channels. On ratification, what will the Minister designate as an ``appropriate channel''? As the statute says, the request may be 
``made by any medium capable of delivering a written record''. 
Does the Minister intend to use e-mail as a vehicle for the transmission of such a warrant or of papers pertaining to it? If not e-mail, what will he designate on ratification? What will he lay out before us for approval and how will we get that approval? If e-mail is going to be used, what are the security implications—for example, what about tampering? The White House has said that it will no longer take e-mails. It is a simple question but a technical one: what appropriate channels will be designated by the Government under article 87.1(a), and will all that apply to Scotland, or will Scotland have powers to designate its own medium? 
 I hope that I have been brief in making my genuine request for information, which relates to my original point that we need some form of clarification following ratification, which the Minister did not fully understand when he replied to me on the first day of Committee. I look forward to hearing what he has to say now.

John Battle: It is fair to say that we have had a full and wide-ranging debate. I do not resent that in any way. Further to the intervention of the hon. Member for Reigate, the difficulty with considering Bills in Standing Committee is that, often, we want to debate matters that should really be debated later, and we have to bring some contextual matters forward and debate them earlier. I do not resent that, because we have had a full debate that has enabled us to tease out the real issues and the serious problems. The point raised by the hon. Member for Chesham and Amersham is fair, and I will come to it in a moment.
 We must always remember that the purpose of the ICC is not to sort out the past but to put down the marker for the future. That makes it different from truth and reconciliation commissions. I do not want to enter into a debate on truth and reconciliation now, but I should say that there was much that was excellent in the hon. Lady's speech on the subject of truth and reconciliation commissions. There were parts that I disagreed with, but I hope that the fact that she raised the topic in the way that she did has resonance outside the Committee. I would prefer to have a full debate on those matters on the Floor of the House or elsewhere at some point in the future—there may be an opportunity when we are under less pressure. 
 The work of truth and reconciliation commissions is important. The work on memory and reconciliation being done in Northern Ireland, together what is going on in Chile, Guatemala, Cambodia and South Africa, can contribute massively to amassing experience on which we can build, so I thank the hon. Lady for raising that topic. However, the ICC will not prevent or block future truth and reconciliation commissions. There may be a further debate on the matter when we reach new clause 2, which raises themes that could perhaps be teased out in more detail, but let us look briefly at the example of Sierra Leone. There, a special court that will work alongside the truth and reconciliation commission has been created with international support. The work of the two bodies will be complementary and they will not undermine each other in any way. You guided us away from discussing countries' internal matters, Mr. Cook. That subject, too, could be addressed in connection with new clause 2. 
 Tribunals are different from the ICC: the ICC is a different animal, a different institution, a different organisation. Tribunals are an international obligation imposed by the United Nations Security Council. They are not directly complementary to the ICC—they have primary jurisdiction. We should bear that in mind. It is important to note that the ICC will deal only with future crimes; therefore, Governments ratifying the statute and their nationals will be fully aware of the possibility of prosecution by the ICC if they commit certain offences. I was asked whether there was any provision in the statute for flexibility. There is. I hope that the very existence of the ICC will deter people from committing war crimes and crimes of genocide. People will know that the court exists, so they will not undertake such activities.

Edward Garnier: May I bring us back to some sort of reality and talk about timing? When does the Minister think that the ICC will be up and running? We will be perhaps the 30th country to ratify the treaty, which means that 30 more will have to ratify it, because the court cannot start to operate until 60 have ratified the treaty; and after the 60th country has ratified, at least a year will be needed to get the court up and running. There may well be many administrative and other details to be worked out, for example, the rules of procedure relating to the mechanics of the courts. Am I completely out of the time frame when I say that the beginnings of the court may not emerge for a decade, or are we in fact talking about something that may happen next year?

John Battle: I not sure in what way that is relevant to clause stand part.
 I hope that the hon. and learned Member for Harborough (Mr. Garnier) is out of the time frame, because other countries are currently debating the treaty preparatory to ratifying it. We may find that we are not the 30th country to ratify; we could be the 40th, because there are at least 10 others lining up to do so. The establishment of the court could move faster than we envisage, rather than slower. I hope that it does. I am not concerned about that—I am simply trying to get support for the idea.

Crispin Blunt: Just before the intervention by my hon. and learned Friend the Member for Harborough, the Minister said that he hoped that the existence of the ICC would prevent crimes from taking place, because it would be up and running and people would be subject to its jurisdiction. I agree that that might be so, but will he elaborate, either now or in the debate on new clause 2, on the consequences that that will have for truth and reconciliation commissions? Will he also explain about the flexibility not to investigate that he implied the ICC had? Can he relate that to the example of a victim who is determined to seek justice and therefore to take a case to the ICC?

John Battle: The crimes that the ICC will prosecute are those for which amnesties are rarely likely to be appropriate. We should start from that premise and remember that the clause deals with convicted criminals. We must keep the process in perspective. The ICC prosecutor has discretion not to institute a prosecution in the interests of justice. That might be appropriate where a fair and democratically supported amnesty has been proclaimed.
 The fact that the ICC will deal only with future crimes means that the Governments ratifying the statute—those include many of the Governments that have truth and reconciliation commissions, such as South Africa, so they are on side in this matter—are fully aware of the possibility of prosecution. The key point is that the nationals of those countries know that it is possible that they will be prosecuted if they commit those crimes—they could be ``got'' by the ICC. That will act as a deterrent.

Cheryl Gillan: If I have understood the Minister—please correct me if I am wrong—he just said that crimes that would be considered within the truth and reconciliation process are not be the sort of crimes for which an amnesty would be given. Earlier, I mentioned 15 TRCs of which I had become aware having read the Centre for Study of Violence and Reconciliation report to see what crimes were covered. In Argentina, for example, there were 8,960 disappeared but an unspecified number of victims of torture or prolonged detention. In other cases, such as Chad, there were victims of torture and arbitrary detention as well as disappeared. Those crimes would be prosecutable under the ICC yet they are crimes for which individuals received an amnesty, so I am not sure that I follow the Minister's argument. Is he saying that these processes are not affected and could carry on despite the ratification of the ICC statute?

Crispin Blunt: I draw the Minister's attention to Northern Ireland and to article 7 of the Rome statute, ``Crimes against humanity''. We have let out of prison early people who are guilty of murder under article 7.1(a) and people who are guilty under article 7.1(k) of
 ``Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.''— 
for example, all those guilty of kneecapping in Northern Ireland. It would be nice to believe that kneecapping was going to end the moment we ratified and the ICC came into action, but I fear that that will not happen.

John Battle: I do not understand the logic of the hon. Gentleman's argument. The reasons why people have been released early in Northern Ireland are a separate issue. They would not have been incarcerated in the first place if they had not been through the process and been tried and convicted. That is not what we are talking about.

Gerald Howarth: Will the hon. Gentleman give way?

John Battle: No, I shall try to answer some of the points that have been made first. Northern Ireland is not relevant. The hon. Member for Chesham and Amersham mentioned South Africa, Chile, Argentina and Sierra Leone. It is important to note that many of the countries that have wrestled with crimes of the past are among the strongest supporters of the ICC.
 Clause 2 sets out the procedure to be followed when a request is received from the ICC for 
``the arrest and surrender of a person alleged to have committed an ICC crime,'' 
or for that of someone who has already been convicted by the ICC. That is the purpose of the clause. The nature of the crimes is a subject that comes later in the Bill. Let us get to that part of the Bill, rather than try to bring that debate forward—if you agree that that is a fair way to proceed, Mr. Cook. 
 Question put and agreed to. 
 Clause 2 ordered to stand part of the Bill.

Cheryl Gillan: On a point of order, Mr. Cook. I rose to my feet before the Question was put to ask the Minister to reply to the specific point to which you so kindly allowed me to return when I could not find my papers. The Minister has completely ignored my question, which is rather unfortunate in an otherwise good-natured discussion. Can you assist me as to when the Minister may be able to give me a response?

John Battle: Further to that point of order, I shall write to the hon. Lady. I was distracted by an intervention at the time, but I will send her an e-mail. However, I can tell her that the Foreign Office will be the designated channel as it always has been and as was explained in the House of Lords when the matter was debated there. Clause 3 Request for provisional arrest

Clause 3 - Request for provisional arrest

Frank Cook: Is it the Committee's will that clause 3 stand part—
Mrs. Gillan rose—

Frank Cook: Order. I will not be distracted by hon. Members of whatever status standing up, opening bottles of water, and wandering around the Committee, as has been happening today. Can we introduce some real discipline into the Committee and behave in accordance with normal practice?
 Do I take it that the hon. Member for Chesham and Amersham wants a debate on clause 3 stand part?

Cheryl Gillan: Yes, Mr. Cook, I would.

Frank Cook: I advise the hon. Lady that we had a lengthy discussion on the clause led by the hon. and learned Member for Harborough when considering amendments Nos. 17, 18, 19 and 21. If I hear any repetition at all, I shall call an abrupt halt to the debate.
 Question proposed, That the clause stand part of the Bill.

Cheryl Gillan: Thank you for permitting a debate on clause 3 stand part, Mr. Cook. I seek some clarification because of the history of the clause.
 Amendments to the clause were tabled by the Government in another place, and this is the first opportunity that we have had to debate the clause since those amendments were made. I seek clarification from the Minister about the letter dated 5 March about the Government amendments, sent by Baroness Scotland to Lord Lester of Herne Hill. Although the Government tabled amendments to several clauses on Report in another place, it will be useful to refer to the amendments to clause 3. 
 During the Committee stage, the Government accepted the amendment—I believe that it was amendment No. 12—tabled by the Opposition on the request of the Law Society of Scotland. That means that those Conservative Mems who have sought to scrutinise the Bill constructively have made a contribution to its improvement. Despite the consultation process to which the Bill was subject, it was not until Report stage in another place that the Government decided that they needed to table the amendments. The amendments have improved the Bill, and it is good to see that certain disparities between the procedures for applying for a provisional warrant in Scotland and those in England and Wales have been dealt with. Following further consideration by the Scottish Executive—

Des Browne: Before the hon. Lady goes any further, I assure her that I have had recent and detailed conversations with the Law Society of Scotland. We are now satisfied that the Government have responded to all the concerns about the Bill voiced by the legal profession in Scotland, and that the Bill is in an appropriate state to reflect the requirements of devolution.

Cheryl Gillan: I am grateful to the hon. Gentleman, who now appears to speaking for those sitting on the Front Bench—may he soon be promoted. I am sure that that we all look forward to that. Unfortunately, reassurances are required from Ministers and from the Government, not from humble Back Benchers, however eminent in the law they may be.
 The question is simple. The original motivation behind the amendment, as Ministers know, was to correct the anomalies between the position in England and Wales and the position in Scotland. I seek an assurance—the hon. Member for Kilmarnock and Loudoun got ahead of me—that the legislation is definitely free of such anomalies. 
 There is a further pertinent point. I am raising the matter on clause 3 stand part because of the history of the clause. The Scottish Parliament is not considering the Bill until long after this House has done so. I think that I am correct—the Minister will tell me—that although the Bill has already been presented to the Scottish Parliament, it will not consider it for several weeks. What would happen if any further anomalies came to light during the passage of the Bill? For example, what would happen if any changes were made to the Scottish legislation during its passage through the Scottish Parliament? What would be the implications for the UK statute? What remedying devices exist and what if there was a gap between the two statutes? I accept that that is hypothetical, but the situation is unusual, and, as we have established, the legislation will be in place for decades to come. 
 I understood that, under devolution, the Scottish Parliament did not take the lead in matters of foreign affairs. However, it is not crystal clear which body takes precedence. Through the device of clause 3 stand part, Mr. Cook, far from trying to annoy you or get up your nose in any way, I seek clarification from the Minister. He is at least nodding and smiling at me, which is more than some people are doing—I do appreciate that. There may be implications for the Bill and it is right and proper that we ask these questions now. I hope that the Minister can throw light on the matter.

Ross Cranston: I have three brief points. First, it is true that in the other place the Opposition tabled amendments at the suggestion of the Law Society for Scotland. I do not criticise them for doing that. We took those amendments on board and reworded them, and the Law Society of Scotland is now happy with the drafting of the clause. It simply brings the procedure in Scotland into line with that in England and Wales.
 Secondly, on the correspondence between provisions here and in Scotland, I am sure that the hon. Lady is aware of clause 80, which states expressly that if necessary the Secretary of State can make regulations to bring the provisions into line, so that the provisions of the Act that the Bill will become are co-ordinated with the provisions of any corresponding Act of the Scottish Parliament. 
 Thirdly, the Scottish Executive is entirely content with the Bill as it now stands, and the Scottish Bill will have no direct impact on this part of the Bill. 
 Question put and agreed to. 
 Clause 3 ordered to stand part of the Bill. 
 Clause 4 ordered to stand part of the Bill.

Clause 5 - Proceedings for a delivery order

Crispin Blunt: I beg to move amendment No. 60, in page 4, line 3, after `court', insert—
`or service court in the case of service personnel'.
 I am grateful to my hon. and learned Friend the Member for Harborough and my hon. Friend the Member for Chesham and Amersham for allowing me to table this amendment with their support. The amendment is a redrafted version of amendment No. 23 that should be consistent with the language used in the Bill. Service courts are defined in clause 75, and the term ``service court'' is therefore more appropriate than ``court martial''. The amendment is needed because service courts are not identified in clause 26 as a competent court for the purposes of section 5. I want to explain why it is important that they are included for proceedings against service personnel under the Act. 
 In his reply to the debate about who would serve as judges on the ICC, the Minister drew attention to the merit of judges with military experience, saying: 
 ``We agree that it is important to have top-quality judges and juries. There will be judges who are experienced in humanitarian law, but—this may help the hon. Member for Aldershot—there will also be military judges who are experienced in the rules and laws of war.''—[Official Report, Standing Committee D, 24 April 2001; c. 103.] 
In the case of the Army, assistance in service courts is normally available from the Office of the Judge Advocate General of the Forces. Its representatives are not mentioned as officers whose presence would enable a service court to be a competent court for the purpose of the relevant proceedings. 
 I hope that the Government will accept the amendment. It is important to remember the circumstances in which the ICC will seek the arrest of a British subject under the Act. As we debated on Tuesday, the United Kingdom will have decided not to bring someone to justice or will be thought to have done so inadequately. Inevitably, the circumstances will be controversial. It would be infinitely better for service men to go through the process at the hands of service courts. Let me explain why. 
 My hon. Friend the Member for Chesham and Amersham asked me to move the amendment because of my 12 years in the Army. Soldiers, sailors and airmen regard the military discipline system as just. Let us assume that the amendment is not accepted. The ICC will exercise its jurisdiction, having overridden the principle of complementarity and because we have decided, for whatever reason, not to bring a soldier, sailor or airman to justice. Technically, it could be argued that it will make no practical difference if the service man goes before a civilian court for the purposes of clause 5, but it will make the greatest difference to morale and confidence in the system in the services themselves. 
 We must acknowledge the services' proper concerns about the Bill. They have been expressed, virtually on the record, by the Chief of the Defence Staff. It is important that the Government listen to concerns about the conduct of the process and, as far as possible, find ways to allay them. Therefore, when a service man is to be delivered to an international jurisdiction outwith that of the United Kingdom, it would be infinitely preferable for a service court, which is part of the military justice system, to make the order.

Des Browne: Will the hon. Gentleman explain to those of us who do not have a military background why our military, according to him, has no confidence in the system of civil justice in this country?

Crispin Blunt: I did not say that the services had no confidence in the civil justice system. I said that they probably have more confidence in the military justice system.

Des Browne: It is the same thing.

Crispin Blunt: I do not accept that. My experience suggests that when there was an opportunity for either system to try him and a soldier left the military justice system and was sent to be tried by the civil justice system, he would have much more confidence that he was going to get a fair trial, ironically—
Several hon. Members rose—

Crispin Blunt: I shall not give way. I merely relate my experience of how soldiers work, how they think and how they approach the discipline system. I can understand that hon. Members who do not have service experience might find it difficult to understand, but with the benefit of my experience I am telling the Committee that soldiers have confidence in the military justice system; they have more confidence that that system will be fair and just with them than they do in the civil system. Not surprisingly, it is the military justice system that they see working day to day—minor parts of the system when they are under commanding officers' orders, but they might occasionally see friends and colleagues end up in front of a court martial.

Mark Hendrick: Is the hon. Gentleman also of the opinion that where police complaints are concerned, only police should investigate?

Crispin Blunt: I understand that that is precisely what the police do.
 The point is that if a service man is to be handed over to an international jurisdiction, it is preferable for the services for it to be seen to be a part of the service discipline system that makes that order. That will be regarded with much more respect and understanding in the services than if the service men were transferred from the military justice system that they understand to a civilian justice system that surrenders them to an international jurisdiction.

Des Browne: I understand the hon. Gentleman's point, but it is a conclusion arising from personal perception. He has military experience that most of us do not have, although I have taken part in a court martial and know something of the military system of justice. Without going into the detail of my experience, I do not entirely agree with his observations. Can he, from his experience, tell me why our service men apparently get better justice before the military service courts than they would get in the civil system? Secondly and most important to the way in which they will respond to this amendment, does he agree with them?

Crispin Blunt: I did not catch the last phrase.

Des Browne: Does the hon. Gentleman agree that there is a better system of justice in the military courts than there is in the civil courts, and what shall we do about it?

Crispin Blunt: My view is that the military system is more just than the civil system, which I believe has more faults than the military system. The military system is not without its flaws, but I wonder whether the hon. Gentleman's experience of taking part in a military trial was that the defendant was able to get a fairer deal than he might have anticipated: perhaps he enjoyed success against a member of the Army Legal Corps that he might not have done had he taken on a member of the Crown Prosecution Service. However, the perception within the military is that when one goes in front of a court martial, it will bend over backwards—not least at the hands of the Judge Advocate General, who conducts the proceedings at a military court martial—to ensure that the proceedings are absolutely fair and explicit. One comes into the military court martial system from what was, until we passed the wretched Armed Forces Discipline Act 2000, a system of justice at unit level that was rough and ready but just. It has not had to be, until now, involved with the details of the Police and Criminal Evidence Act 1984, or concerned with the least serious military order offences. To go before a court martial is to go before a system that is palpably fair.
 The principle involved is of concern to a service man. If he is to be surrendered to an international jurisdiction, is it better for him to be surrendered by a military court, which he understands as part of his chain of command and is a system to which he belongs, than to be handed over to a civilian system, which is foreign to his conduct? The situation will be one in which he has committed an offence as a soldier. Are we to allow our service men confidence in a system that will be responsible for their surrender to another jurisdiction?

Des Browne: There might be one in the pipeline, but will the hon. Gentleman say whether there is to be an amendment tabled that suggests that all civilians should be dealt with by such a system, if it is fairer?

Crispin Blunt: I think that the hon. Gentleman is being rather flippant. The military experience is based on the totality of being in the military. Civilians do occasionally face courts martial: for example, before the fall of the Berlin wall, when the British Army of the Rhine was in place, civilians working for the forces in Germany were subject to military discipline and, on occasion, spouses of military personnel faced courts martial.
 If you told the average civilian population that they could face a military court martial, I do not imagine that they would think that they would receive justice in front of a court that was totally foreign to them. The hon. Gentleman has therefore proved my point. Service men will have more confidence in decisions made by a justice system of service courts because they are familiar with it. A civilian in front of a court martial would wonder, ``What on earth is going on'', if he was not supposed to be under that jurisdiction. My point, which the hon. Gentleman has kindly adduced, is that the military are more likely to have confidence in service courts.

Des Browne: Will the hon. Gentleman give way?

Crispin Blunt: No—the hon. Gentleman has been helpful enough in making my case. I look forward to the Solicitor-General's response. I hope that he will make it clear that he will accept the amendment and thus show faith in the service court system and give our armed forces confidence in the process on which we are embarking.

Ross Cranston: Unfortunately, the amendment is based on a faulty premise. The hon. Gentleman suggested that service personnel are never subject to civilian courts—but they are. If they commit murder or offences of the sort referred to in part V of the Bill, they are subject to ordinary courts. There is nothing unusual in service personnel being brought before civilian courts.

Crispin Blunt: The Solicitor-General does not have to go down that road. Of course, I accept his point. The amendment is not based on that premise, and he will note that it states:
``or service court in the case of service personnel''. 
The way that it is phrased gives flexibility about whether it is appropriate to put service personnel in front of a competent civilian court or a service court, and that offers the same choice that faces service personnel in the United Kingdom. Service personnel are, however, liable to come before a civilian court for civilian offences.

Ross Cranston: Service personnel are subject to civilian courts, so I think that my point answers the argument about the issue of confidence.
 The next fallacy is more fundamental. Courts martial—the service courts that he mentioned—are not standing courts, nor are they courts of general jurisdiction. They are ad hoc courts that come into being to deal with a particular case. They deal with certain offences committed by service personnel. They do not have a general role in, for example, extradition proceedings, so in our view, there is no role for them in the process under discussion. 
 Military personnel will have their interests protected and safeguarded in the same way as other accused persons arrested under an ICC warrant. I do not want to enter a large debate about the alleged concern of people in the armed services about the Bill. The Ministry of Defence was involved in the negotiations in Rome and in the drafting of the Bill. My hon. Friend the Minister of State, Foreign and Commonwealth Office quoted the exact words of Admiral Sir Michael Boyce on the Floor of the House and I do not want to get into that debate. The MOD and the armed services are fully on board with regard to the Bill.

Crispin Blunt: I am disappointed by the Solicitor-General's response, as he will have anticipated. It is a pity that the Government are showing a lack of understanding of the armed forces with regard to the amendment, as they have shown in other respects.
 I accept that the Bill as drafted provides the opportunity for a service man to go before a court to be delivered. However, it is a shame that the Government have demonstrated their lack of understanding of the armed forces through the Solicitor-General's abrupt refusal to consider the amendment.

Gerald Howarth: Did my hon. Friend hear the Solicitor-General say that the services were ``fully on board with regard to the Bill''? I do not know if that means with regard to my hon. Friend's amendment. Does my hon. Friend think that the Solicitor-General's remark squares with the public statement made by the Chief of the Defence Staff to the House of Commons Select Committee on Defence?

Crispin Blunt: My hon. Friend is quite right—it does not. There are concerns in the armed forces and the amendment would have gone a short way toward meeting those concerns. I do not want to press it, but I think that this is an example of the Government's failure to understand the armed forces as they should. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Edward Garnier: I beg to move amendment No. 24, in page 4, line 10, at end insert—
``, and
(c) that there is a prima facie case, on the evidence to be heard.''.
 I do not want to undermine what my hon. Friend the Member for Reigate has just said, but I agreed with a good deal of what the Solicitor-General said, not least his remarks relating to the current position in respect of courts martial, whereby serious crimes such as murder are dealt with by civilian courts instead.

Crispin Blunt: My hon. and learned Friend is, of course, aware that that is the position in the United Kingdom. However, when our armed forces are stationed abroad, such serious issues are very properly dealt with by the service court system. I have been involved in two such cases when a soldier was accused of rape.

Edward Garnier: Fortunately, however, the amendment that my hon. Friend the Member for Reigate was discussing is now past history and I can now discuss amendment No. 24. I made that remark not to undermine my hon. Friend—much—[Laughter.]—but to encourage the Solicitor-General to deal fairly with the amendment that my hon. Friend the Member for Chesham and Amersham and I have tabled. The amendment was explored briefly in the other place, but not adequately dealt with by Ministers there. It is quite clear, and I invite the Solicitor-General to tell me why it should not be included in the Bill.

Ross Cranston: The answer is straightforward and twofold. First, we have an obligation under the statute. If the hon. and learned Gentleman looks at article 59.4 of the statute, he will see that it is not
``open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued''. 
We are not allowed to second-guess the ICC. That would be inconsistent with our obligations under the Rome statute. 
 My second point, not addressed by the hon. and learned Gentleman when discussing a previous clause, is that under the existing precedents—the tribunals for former Yugoslavia and for Rwanda—there is no such provision. Those tribunals were approved by statutory instrument by the previous Government, as I mentioned the other day, and we commend them for that. They do not allow discretion. If the hon. and learned Gentleman examines paragraph 6 of the United Nations (International Tribunal) (Former Yugoslavia) Order 1996, he will see that the provision that he proposes is at odds with the arrangements there. 
 Those are the two grounds on which I cannot accept the amendment, and I invite the Committee to resist it.

Gerald Howarth: I should like question the Solicitor-General. It is important to understand that he is saying that there is complete automaticity: if the ICC serves a notice on the British Government through the channels that the Minister of State indicated—the Foreign and Commonwealth Office—the competent court can only satisfy itself that the warrant has been issued by the ICC in accordance with clause 5(2) and that the person is the right person, as we have already discussed. The court has no other authority whatsoever. Even if it were felt that there was a prima facie case for questioning the warrant, it would not be possible to do so. Under the legislation that we are being asked to enact, we will have absolutely no power to intervene in delivering up a British citizen to a court when we feel that it is not justified.

Ross Cranston: We have gone over this ground before, but such protection is contained, for example, in clause 5(4), which we will come on to shortly, and in the statute itself. Article 17 of the statute makes it quite clear that if we make an attempt to deal with someone, the ICC will not have jurisdiction. We have long maintained the position that the ICC is the best place to decide whether someone has a case to answer, if we have not dealt with them, and that our courts should not attempt to second-guess it. That is set down in the statute.

Edward Garnier: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Edward Garnier: I beg to move amendment No. 26, in page 4, line 36, at end insert—
``, or
(c) that there is reason to believe that the person would not receive a fair trial in accordance with principles of United Kingdom law''.

Frank Cook: With this it will be convenient to consider new schedule 1—Rights of person delivered up to the ICC—
 ``1. All persons delivered up to the ICC under this Act shall be entitled to all the rights, protections and privileges which would be afforded to them in English law if they were facing a trial on indictment in England and Wales. 
 2. No person shall be delivered up to the ICC whether under this Act or otherwise or be subject to any of its powers whether set out in this Act or otherwise, in the absence of a written notice served in each specific case by the ICC at the time of arrest or detention of such a person which guarantees the provision of such rights, protections and privileges. 
 3. The said rights and protections and privileges in paragraph 2 shall include but not be limited to the following— 
 (a) the presumption of innocence until proven guilty; 
 (b) a public trial unless the defendant consents to a trial in secret; 
 (c) the rights to confront and cross-examine witnesses; 
 (d) conduct of proceedings in the defendant's choice at the public expense; 
 (e) the right to remain silent without the drawing of adverse inferences for such silence; 
 (f) all proceedings whether by jury or otherwise to be conducted in the first language of the accused, or with the provision by the ICC to the defence and accused of appropriate and competent interpretation; and 
 (g) a party who has been acquitted of an offence may not be retried for the same offence, or an offence on the same or similar facts.''.

Edward Garnier: Much of what is set out in amendment No. 26 and new schedule 1 is uncontroversial. It might be said that there is no need for them because their contents are already present within the Bill or the statute of Rome itself.
 A number of points need to be clarified, not least because the Bill is not a simple replication of the statute of Rome. It requires one—this is what we are paid to do—to assimilate various parts of the Bill, both its main text and the schedules, with the statute of Rome. I want briefly to refer to the procedures and standards that we expect the ICC to apply to defendants and to the cases that come before it when it is set up—whenever that may be. 
 I remind the Committee that amendment No. 26 would add a new paragraph (c) to clause 5(2), which would state a third reason. Clause 5(2) would then read: 
``If the competent court is satisfied— 
 (a) that the warrant— 
 (i) is a warrant of the ICC and has been duly endorsed under section 2(3), or 
 (ii) has been duly issued under section 2(4), and 
 (b) that the person brought before the court is the person named or described in the warrant,''— 
and this is the third alternative— 
``or 
 (c) that there is reason to believe that the person would not receive a fair trial in accordance with principles of United Kingdom law''. 
So the court would have to be satisfied on those three bases before it could make a delivery order. 
 I accept that at least some of our proposals in new schedule 1 are already included in the statute, but the schedule sets out the basic standards that we would want to be included in any proceedings. We in this country and this Parliament are careful to ensure that the rights of victims are properly recognised and protected by the criminal justice system; equally, in doing so, we must ensure that the rights of defendants are adequately protected. As legislators, we have two interests. First, to make sure that the perpetrators of criminal acts are brought to trial, but secondly, to make sure that when they are brought to trial, they are treated according to the proper standards that we expect of our judicial and criminal justice system. We should expect no less of an international criminal court. It does not matter whether we are talking about the rights of UK nationals or the rights of citizens of other countries who are arrested in this country, either because they are here temporarily or because they have fled here to avoid justice in their own countries for war crimes. 
 The first paragraph of new schedule 1 proposes that: 
 ``All persons delivered up to the ICC under this Act shall be entitled to all the rights, protections and privileges which would be afforded to them in English law if they were facing a trial on indictment in England and Wales.'' 
I can foresee a practical difficulty straight away, because if one is tried for murder in a civilian court in this country, the chances are—subject to the defendant pleading guilty and, therefore, not requiring a full trial—that one would expect a jury trial, as one would for all indictable-only offences. However, as I understand it, the statute of Rome makes no provision whatsoever for jury trials. Indeed, I can see that there would be difficulties in assembling a jury for an ICC based in The Hague because from where would such a jury come? Although I am not a criminal lawyer myself, it would obviously be attractive to those who practise in the English courts—perhaps I should say the British courts, because juries are available in Scotland as they are in England and Wales—if, in the event of a British defendant being transferred to the ICC, he was tried there by a judge and a British jury. 
 However, there would be huge practical difficulties with that. It would be almost impossible to find 12 or any other number of British citizens who could be transported to take part in what could be a very long trial. I say that only because of the experience that we have of the Yugoslavia tribunal, which is currently sitting. Some of the trials involving defendants from the former Yugoslavia have taken a very long time, so I accept that there is that difficulty with paragraph 1. 
 A jury trial may therefore not be possible. However, there is no reason why those defendants who are caught by the Act that the Bill will become in our jurisdiction should not have the protection and privileges that would normally be afforded to them under English law if they were facing trial on indictment in this jurisdiction. That is the preamble. It may well be described as no more than motherhood and apple pie, but I hope the Minister responding to the debate will salute it, even if he does not wish to see it jump into his ministerial car. 
 In paragraph 2, we suggest that 
 ``No person shall be delivered up to the ICC whether under this Act or otherwise or be subject to any of its powers whether set out in this Act or otherwise, in the absence of a written notice served in each specific case by the ICC at the time of arrest or detention of such a person which guarantees the provision of such rights, protections and privileges.'' 
Again, I confess that, at least in part, that is provided under the Rome statute. Paragraph 3(a) of article 61, entitled ``Confirmation of the charges before trial'', states: 
 ``Within a reasonable time before the hearing, the person shall: 
 (a) Be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial; and 
 (b) Be informed of the evidence on which the Prosecutor intends to rely at the hearing. 
 The Pre-Trial Chamber may issue orders regarding the disclosure of information for the purposes of the hearing.'' 
I accept that, under that provision, a defendant will be given at least an outline—and one would hope rather more—of the case that he will have to answer and the basis upon which the prosecution intends to prove his guilt. 
 It seems to me—no doubt the Solicitor-General has studied this at greater length than I—that there is room, without damaging the statute, and without damaging the policy behind the Bill, to include if not new schedule 1(2) itself, then something along those lines. It must be acceptable to all of us, whichever side of the Committee we are on, to introduce into the Bill a provision that requires that no one shall be delivered up to the extra-territorial court in the absence of a written notice, served in each specific case by the court when the arrest is made, guaranteeing the provision of the rights, protections and privileges referred to in new schedule 1(1). 
 I would imagine that the Solicitor-General could easily draw up overnight a pro forma document that could be handed to a defendant—

Tony Worthington: It could be photocopied.

Edward Garnier: That is right, it could. It could be handed to the defendant, saying, ``These are your rights.'' I dare say that there are protocols or other such written memoranda in international jurisprudence that are used in the cases of those brought before the Yugoslavian or Rwandan tribunals; there may well have been something similar in the Cambodian or Laotian court that the United Nations set up. In any event, it cannot be beyond the wit of man, let alone the Opposition, to draw up a written document that sets out a defendant's guaranteed rights, protections and privileges. That is surely a secretarial task, which does not require the input of huge legal thought or intellect.
 Article 64 of the statute relates to the ``Functions and powers of the Trial Chamber''. It deals in part with the concerns expressed in paragraph 3 of the new schedule. Other articles on pages 36 to 38 of the statute may assist me, but I want the Government to confirm their understanding of the statute. Paragraph 3 of the new schedule states: 
 ``The said rights and protections and privileges in paragraph 2 shall incude but not be limited to the following— 
 (a) the presumption of innocence until proven guilty''. 
It does not take a brain surgeon or rocket scientist to go much beyond article 66, in which one sees that the presumption of innocence is incorporated into the statute. The article states: 
 ``Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.'' 
That is fine as far as it goes. The onus is on the prosecutor to prove the guilt of the accused and the standard of proof required in paragraph 3 is something that we would all recognise. 
 Paragraph (b) of the new schedule states that there shall be 
``a public trial unless the defendant consents to a trial in secret''. 
That is almost dealt with in the statute, but not quite. Article 64.7 states: 
 ``The trial shall be held in public. The Trial Chamber may, however, determine that special circumstances require that certain proceedings be in closed session for the purposes set forth in article 68, or to protect confidential or sensitive information to be given in evidence.'' 
One could imagine any number of circumstances in which it would be appropriate to have a criminal trial in the absence of the press and the public—one thinks of national security trials in this country. Although parts of such trials would have to take place in open court, it is only right and proper when dealing with espionage matters or matters of acute national security that the public should be excluded, subject to the defendant being given proper protection. Otherwise, the whole purpose of the secrecy system covering our intelligence and security services would be destroyed. 
 Article 64.7 does not, however, meet the concern that we want met in paragraph 3(b). The choice of whether the trial should be held in public or in secret appears from the article to remain with the court and to allow no input from the defendant. I turn to article 67 to see whether any of the rights of the accused which it sets out give me any assistance. Perhaps I have been hasty, but I do not think that that article deals with the issue set out in paragraph 3(b). I look forward to hearing the Government's view on that.

[Mr. Worthington in the Chair]
 Paragraph 3(c) of new schedule 1 refers to 
``the rights to confront and cross-examine witnesses''. 
Article 61.6 states: 
 ``At the Hearing, the person may 
 (a) Object to the charges; 
 (b) Challenge the evidence presented by the Prosecutor; and 
 (c) Present evidence.'' 
I am sure that that is welcome. However, do the Government suggest that paragraph 6(b) wholly covers my concerns as explained in paragraph 3(c)? Is the right 
``to confront and cross-examine witnesses'' 
wholly protected by paragraph 6(b)? I ask that because some will remember the recent discussions about the ability of defendants who represent themselves in rape cases in this country to cross-examine their alleged victims. I cannot remember the current position, but there have been discussions, and it may well be the law in rape cases that a defendant acting for himself may be prohibited at the discretion of the trial judge from cross-examining the complainant. An ICC defendant is not required to be represented by a lawyer, and the judges may sometimes think it appropriate, in line with discussions that we have had in this country, to direct that the defendant should not have the right to confront a witness for the prosecution in cases of rape or mass rape, which is a war crime. What is the Government's view? Should the ICC have the power to prevent a defendant who represents himself from asking unattractive, upsetting and emotionally disturbing questions of the complainant?

[Mr. Frank Cook in the Chair]
 Paragraph 3(d) of the new schedule refers to the 
``conduct of proceedings in the defendant's choice at the public expense''. 
There may have been a typographical error there, because the provision does not make sense. I understand it to refer to the conduct of proceedings in the language of the defendant's choice at the public expense. The statute probably caters for that up to a point in that it identifies the official languages of the court and provision is made for the supply of necessary interpreters. I have been to The Hague and know that that is possible—no doubt at some expense and in a way that slows the trial process. None the less, a defendant who cannot speak one of the official languages would be protected by the provision of adequate interpreting services. 
 Paragraph 3(e) deals with 
``the right to remain silent without the drawing of adverse inferences for such silence''. 
Article 67.1 states: 
 ``In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality''. 
Sub-paragraph (g) adds that the accused shall be entitled not 
``to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence''. 
This may be simply a question of the construction of the language of the statute, but I would like confirmation that sub-paragraph (g) means that no adverse inference will be drawn against a defendant who remains silent. Some well-informed Labour Back Bencher will undoubtedly pop up and say, ``Didn't your Government introduce the relevant sections?''

Tony Worthington: Indeed.

Edward Garnier: There we are—cast a fly across the water and the little chap will bob up. The important point is that the prosecution in this country must at least identify the inference—[Interruption.] It was not in this case. The prosecution must identify the inference before the jury is invited to draw an adverse inference from silence at arrest or interview or from a failure to give evidence. I would like confirmation that sub-paragraph (g) is compliant with paragraph 3(e) of new schedule 1.
 Paragraph 3(f) of new schedule 1, which provides for 
``all proceedings whether by jury or otherwise to be conducted in the first language of the accused, or with the provision by the ICC to the defence and accused of appropriate and competent interpretation'', 
has been dealt with, up to a point, by my argument on paragraph 3(d). Article 64(3) of the statute states: 
 ``Upon assignment of a case for trial in accordance with this Statute, the Trial Chamber assigned to deal with the case shall . . . 
 (b) Determine the language or languages to be used at trial''. 
I assume that, in line with the ordinary rules of natural justice, the court will determine the language or languages to be used at trial in such a way that the defendant will not be disadvantaged. I am sure that that is uncontroversial. However, there may be circumstances in which the defendant speaks a language wholly unknown to the bank of translators or interpreters at the Hague. 
 To introduce an almost irrelevant note of levity I am reminded of the candidate at All Souls who was studying Serbo-Croat and wanted to be examined orally in that language at Oxford so that he could complete his postgraduate studies. The university authorities wrote to the then Yugoslav embassy to inquire about the most appropriate and sensible choice of person to conduct the examination, only to be told that that would be the candidate himself. That has nothing to do with the ICC but it demonstrates that from time to time languages or dialects that are known by only a few people may crop up. We must be sure, in setting up the ICC, to establish access to a sufficient breadth of language knowledge, so that no defendant, whether a citizen of the United Kingdom or of some other country, will be disadvantaged by a failure with respect to language. 
 Paragraph 3(g) of new schedule 1 would provide that 
``a party who has been acquitted of an offence may not be retried for the same offence, or an offence on the same or similar facts''. 
Article 20.1 of the statute states: 
 ``Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.'' 
Articles 22 and 23 are complementary to that. In the context of article 23, I want to know the Government's view on who decides whether article 20 bites—the domestic courts in this country or in the other jurisdiction contesting the ICC's jurisdiction, the pre-trial chamber or the full court? If a challenge is made on the ground of autrefois acquittal or conviction, who will reach the necessary conclusion? Should the competent court in this country, when asked to deliver up a defendant, be able to reach a final decision, or should its decision be open to re-examination by the pre-trial chamber or the ICC? 
 I have been engaged in a dry discussion that has not been exactly a laugh a moment, but the matters involved need to be examined. I want reassurance from the Government about them, not least because—I do not blame anyone for this—we are operating under a constrained timetable. The House, in its wisdom, has decided that we should have only a certain number of days to discuss the matter in Committee and only a certain number of hours to discuss the Bill on Second Reading and Report, and very little discussion took place on these matters in another place. Although they might not be hugely fascinating to all those concerned, I believe that it is appropriate to raise them and seek reassurance from the Government. We should not allow ourselves to be overtaken by the enthusiasm for the ICC thta—albeit to greater or lesser degree—we all share and rush through the Bill to take our country into the ICC without taking proper account of the need to ensure that the machinery is in place, not only to deter bad guys wherever they may be, from being bad, but to protect the innocent from being convicted.

Gerald Howarth: I rise briefly to support my hon. and learned Friend the Member for Harborough. I have looked through several of the articles—in fact, I reviewed them again on the train this morning—and I marvel at his wonderful ingenuity in seeing potential pitfalls, which I, in my rude and rudimentary, non-legal fashion have failed to detect.
 It is clear that there is an attempt in the statute of Rome to ensure that there is comprehensive protection for accused persons. Throughout our proceedings, the Government have sought to reassure us of their great confidence in the court and the structure that establishes it. We heard an enthusiastic presentation from the Government about how the court would be independent and unable to gang up on countries, about how excellent the judges would be, and how all the structures that have been put in place are designed to give us confidence that the ICC will be a proper and respectable court. I put it to the Minister, however, that articles can be changed. 
 It is my understanding that, in accordance with paragraph 7 of article 112, 
 ``Each State Party shall have one vote. Every effort shall be made to reach decisions by consensus in the Assembly and in the Bureau. If consensus cannot be reached, except as otherwise provided in the Statute: 
 (a) Decisions on matters of substance must be approved by a two-thirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting''. 
I understand that to mean that the quorum for voting will be at least 50 per cent. of the states parties and that any vote taken must have a two-thirds majority of those present and voting. Therefore, articles of the statute could be changed by one-third of the membership. 
 The Government will, no doubt, tell my hon. and learned Friend the Member for Harborough that his fears are unfounded because all the articles provide more than adequate protection for persons who are likely to be brought before the ICC. Nevertheless, if the Government were to accept my hon. and learned Friend's amendment, it would enact into UK law a real safeguard in the event of the articles of the statute being changed—by the mechanism that I have mentioned, if I am right—in a way that might remove from accused persons the kind of protections that we in the United Kingdom expect. 
 The new schedule proposed by my hon. and learned Friend would not in any way conflict with the statute. It would, however, provide some reassurance that the Government were prepared to include in the Bill a provision that any citizen of this country who was delivered up to the ICC would be entitled to all the rights, protections and privileges that they would be afforded under English law if they were facing indictment and trial in England or Wales. 
 That would do nothing to invalidate the Rome statute, and thereby cause problems for the present Government. However, it would be a way of saying that if an attempt were made to change the articles of the statute in a way of which we did not approve, such as to diminish the rights of accused persons, our domestic legislation would give power to a future Government to deal with the matter. 
 I hope that the Government appreciate that we are trying to learn the lessons of the past and use them to foresee how the court might work out in practice. If we raise hypothetical cases that cause us, Ministers and other Government Members concern, I is because we are trying to foresee the unforeseeable. That is our duty when setting up a permanent international criminal court.

Ross Cranston: I understand that the spirit in which the amendment and the new schedule have been proposed is one of genuine concern for the rights of accused persons. However, I want to reassure the Committee that they are unnecessary in terms of protecting the rights of accused. To introduce the provision would be in breach of our obligations under the statute.
 The hon. and learned Member for Harborough took us in some detail through the provisions of the relevant articles of the Rome statute. He rightly pointed out the presumption of innocence in article 66 and the right of public trial in article 67, and that even in our jurisdiction a criminal trial can sometimes be conducted before a closed court if, for example, it involves evidence that touches on a matter of national security. It would be appropriate in certain circumstances for that to occur in the ICC, as recognised in the Rome statute. 
 The hon. and learned Gentleman raised the question of whether the accused would have any input into that. Natural justice is a well-accepted principle of international law. The statute provides clearly for a right of representation, so for the ICC not to accept representations by counsel for the accused as to whether the court should be open or closed would be inconceivable; it would be a clear breach of international law. I can reassure him on that matter. 
 The hon. and learned Gentleman also pointed out the right of cross-examination, and raised an interesting point about the right to remain silent in article 67.1(g). It could be argued that the provision in the Rome statute is more extensive than the rights laid down in domestic law. No doubt, like me, he has directed juries that in some cases adverse inferences can be drawn from the silence of the accused in domestic law. My reading of the provision is that that is probably not possible under the terms governing the ICC. On the interesting point of whether preventing the accused himself from cross-examining witnesses is in breach of article 6 of the European convention on human rights, he will know that there is a relevant case currently before the House of Lords in its judicial capacity. We await judgment on that controversial matter. However, I anticipate that the ICC would act in accordance with the decision of international tribunals such as the International Court of Human Rights. 
 The hon. and learned Gentleman mentioned, in relation to article 67, the right of the accused to have benefit of competent interpretation and translation in the language that the accused ``fully understands and speaks''. That provision is quite clear. The Rome statute provides that English and French be the two working languages of the ICC, and there are provisions about working languages in the rules on procedure and evidence. I will let him examine those rules later. However, I can assure the Committee that the accused will be fully protected in terms of adequate interpretation and translation. 
 The hon. and learned Gentleman also raised article 20, which concerns the right not to be tried twice for the same offence. He asked whether the domestic court would decide that particular matter. I interpret the wording of the statute to mean that if, for example, an English court had decided the issue under part V of the Act that the Bill will become, the ICC would decide that the person in question had already been tried. That brings us back to the issue of complementarity, with which we have dealt on previous occasions. The ICC will have jurisdiction only if the domestic jurisdiction does not deal with the matter in a bona fide way. 
 Article 55 deals with the rights of the accused person during an investigation. The statute clearly lays down those rights. As I have said, in at least one respect the statute goes beyond the rights given to an accused person in our domestic jurisdiction. It could also be argued, although it is a more academic point, that it goes even further, beyond the rights that are set out in article 6 of the European convention on human rights. 
 My second point, to which I referred at the outset of my remarks, was that introducing the provision into the Bill would place us in breach of our obligations. We have gone over that ground before. The Committee is already aware that nothing in the statute allows a state to refuse to surrender a person to the ICC because the ICC has not issued a written notice on the subject of rights at the time of the arrest, so to introduce the proposed provision would place us in breach of our obligations under the Rome statute. I give the Committee my assurance that the rights of the accused person will be protected at least to the extent provided for in domestic law. The provision would put us in breach of our obligations. 
 The hon. Member for Aldershot (Mr. Howarth) raised an issue about the amendment, which perhaps he will clarify.

Gerald Howarth: My concern is that the statute's articles have the power to be amended by only a third of the membership. If we enact the new schedule, perhaps with amendments, it would provide a safeguard against reducing the defences available to an accused person.

Ross Cranston: I can take the hon. Gentleman through the provisions in the statute. Yes, it can be amended after seven years, but if he goes through the amendment provisions closely, he will see that that can be done only if there is a two thirds majority in the assembly, and then only if seven eighths of the assembly members have accepted the change. It is inconceivable that the ICC will move away from well-accepted international standards about the rights of accused persons in either the investigation process or the trial procedure.

Edward Garnier: I shall be brief because I expect that we will be called downstairs before long. I am grateful for the Solicitor-General's reassurances. He will be the first to agree that those important rights need to be proclaimed, no matter how keen we all are that war criminals are brought to justice.
 We are working under not only time constraints, but procedural constraints, because we are dealing with a statute that we cannot amend. I find that hugely and increasingly frustrating. We are currently discussing clause 2; I doubt that we will ever get on to schedule 3, or even schedules 1 and 2, which deal with the manner in which procedures are imported into our system. The Solicitor-General rightly mentioned article 55, but that is hidden away in schedule 3 on page 54 of a lengthy piece of legislation. 
 I am worried that we might push through an important Bill too quickly. People might say, ``So what? We all want to see an ICC—end of story.'' The Government are entitled, with their majority, to get their business through. I think, however, that we should be careful and, from time to time, think a little more deeply about what we are doing in this Room. I hope that we will not lose sight of that. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 5 ordered to stand part of the Bill.

Clause 6 - Supplementary provisions as to proceedings before competent court

Question proposed, That the clause stand part of the Bill.

Edward Garnier: I have one or two very brief questions about clause 6. We all know that the competent court means the domestic court that will deal with the transmission of the defendant to the ICC. I want to ask the Government about costs.
 I note that in clause 6(2) provision is made for the payment of 
``defence costs on dismissal of proceedings''. 
If a defendant is brought before the competent court and it dismisses the information against him, he would be entitled to recover his costs, which I assume would be obtained from the Crown Prosecution Service or the Foreign Office. I expect that it would be the CPS because it would be acting for its client—the Foreign Office or the ICC—just as the CPS acted for the Government of Spain in the Pinochet matter. In the event that the case is dismissed and the CPS is required to pay the defendant's costs, will the CPS—and I ask the question as protector of taxpayers' money—be able to recover, on an indemnity basis, what it has paid from the ICC?

John Battle: When the hon. and learned Gentleman moved the amendment on the previous clause, he commented that we must address the detail of the Bill and get it right. I concur. We are not content to say simply that the Bill is a good idea, so let us get on with it.
 Clause 6 contains practical provisions that will ensure the proper and efficient conduct of proceeding on a delivery order. It enables a competent court to exercise certain powers relating to the conduct of proceedings; for example, it can adjourn the case and remand the arrested person. It provides for the arrested person to have access to criminal advice, assistance and representation through the criminal defence services. As for what would happen in the event of a discharge, the arrested person's costs would be paid out of central funds.

Edward Garnier: I am grateful to the Minister, but my question went a little further. Will the CPS be able to recover the outgoing costs that it has to pay from its client—the foreign extra-territorial body? While he is taking instructions, and I mean that in the nicest—

John Battle: I am not insulted. I apologise for the delay.

Edward Garnier: No, I am delighted. I want the Minister to have all the information that he needs.
 In the extradition case, the kingdom of Spain was the client of the CPS, which may—I do not remember—be insusceptible to an order for costs, and that case may have gone all the way through the Lords and back. Under the Bill, will the ICC be required to pay the CPS's costs for doing the ICC's work?

John Battle: That is a good question. I apologise for consulting the Solicitor-General, but his advice, as usual, is spot on. Article 100 refers to costs, and makes it clear that costs would be borne by the state, not by the ICC, so they would come back home to us and we would have to find them from central funds.
 Question put and agreed to. 
 Clause 6 ordered to stand part of the Bill

Clause 7 - Consent to surrender

Question proposed, That the clause stand part of the Bill.

Cheryl Gillan: I have not tabled an amendment to the clause, but seek clarification following the proceedings in another place. Clause 7 deals with consent to surrender and provides that where an arrested person gives written consent
``in the presence of the justice of the peace or, in Scotland, a sheriff,'' 
the competent court will make a delivery order and the person will have been taken to have ``waived his rights'' to appeal against the order. According to the notes on the clauses, that reflects the provision in article 92.3. 
 Clause 7(2)(b) states that consent to surrender may be given 
``in circumstances in which it is inappropriate for the person to act for himself, by reason of his physical or mental condition or his youth, by an appropriate person acting on his behalf.'' 
The definition of incapacity was brought up in another place, but I want to probe the matter further because, as I am sure that the Solicitor-General will agree, it is important to establish the circumstances in which another individual can take on the onerous burden of consenting to surrender for the person who is the subject of the warrant. 
 In our discussion of clause 2, we saw that a person already convicted can be the subject of a warrant and therefore in extremis—he or she has nothing to lose. Yet here we have a situation in which a person purporting to take the burden from the shoulders of the person arrested will take on the role of mouthpiece. That has serious implications for the liberty of the person arrested. Given that the provision gives total discretion to the other person acting on that individual's behalf, the ability to consent to surrender should be given to another person only in very restricted circumstances in which the person arrested cannot give consent. 
 My noble Friend Lord Kingsland moved an amendment to that effect, No. 37, in another place. The Attorney-General, Lord Williams of Mostyn, tried to give a reason for rejecting the amendment, but the discussion was not a full one and it represented something of a dismissal of the case that had been advanced quite succinctly. The Solicitor-General should have the chance to make further comment on the definition of incapacity, given the severity of the consequences. It is important to ensure that the court is satisfied of the individual's incapacity prior to accepting consent from another party.

Ross Cranston: As the hon. Lady rightly says, there is a provision whereby, in circumstances in which it is inappropriate for a person to act for himself or herself, someone acting on his or her behalf can give consent, that is, in the event of incapacity. Our domestic courts will not take such a matter lightly. They will want to be satisfied as to the incapacity and to test both it and the appropriateness of somebody else acting on the person's behalf. It is right that the Opposition raise such cases, although we think that they are extremely unlikely to occur, if at all.

Cheryl Gillan: The Solicitor-General says that such cases are unlikely to occur. However, one condition in 7(2)(b) is ``by reason of . . . youth''. Child soldiers are used extensively in certain warring areas, so it is not unreasonable to assume that a situation might arise in which a minor—I would like the Solicitor-General to clarify any possible age limit—is subject to having to give consent to surrender, but is incapable of doing so and requires someone to do it on his or her behalf. I am not sure what the Solicitor-General means when he says that that is impossible. It might be unlikely, but it is possible or even probable in certain circumstances.

Ross Cranston: The courts will not have jurisdiction over persons under the age of 18. The key point is that the court will test the matter—if there is any dispute about the person's capability, the court will decide. I am sure that our courts will exercise that power rigorously.
 Sitting suspended for a Division in the House. 
 On resuming— 
 Question put and agreed to. 
 Clause 7 ordered to stand part of the Bill.

Clause 8 - Procedure where court refuses order

Question proposed, That the clause stand part of the Bill.

Edward Garnier: I have only a few brief questions on clause 8. Subsection (1) states:
 ``If a competent court refuses to make a delivery order, it shall— 
 (a) make an order remanding the person arrested''. 
Will the Solicitor-General confirm that remand can mean remand in custody and remand on bail? Will the usual domestic rules for the granting or otherwise of bail apply? Is it anticipated that special rules, which are different from the usual criminal bail rules, will apply? The Solicitor-General is being handed a piece of paper—

Ross Cranston: I do not need it.

Edward Garnier: I know that the hon. and learned Gentleman does not need any help.
 Clause 8(2) states: 
 ``If the court is informed without delay that an appeal is to be brought under section 9 or 10, the order remanding the person arrested shall continue to have effect''. 
Could both the Crown—acting for the ICC—and the defendant appeal if they were dissatisfied, or is an appeal open only to the defendant?

Ross Cranston: I can give the assurance that the hon. and learned Gentleman seeks on the first point. Clause 16 provides for remand to include remand on bail. The ordinary bail rules would apply. That is also true of appeal—the hon. and learned Gentleman's third point.

Edward Garnier: Subsection (2) contains the phrase:
 ``If the court is informed without delay that an appeal is to be brought under section 9 or 10''. 
Clause 9 deals with appeals against refusal of a delivery order in England and Wales and clause 10 deals with such appeals in Scotland, although I will not worry about that because it is way beyond my ken—whoever he is. However, I want to be clear that there is a two-sided appeals system in clause 9. Or is it only one-sided? I might have wholly misunderstood the thrust of clause 8, in which case the Solicitor-General can correct me.

Ross Cranston: In this case, the piece of paper did help me. The Secretary of State can appeal if there is no order, and the accused can appeal if there is. I hope that that gives the hon. and learned Gentleman the assurance that he seeks.
 Question put and agreed to. 
 Clause 8 ordered to stand part of the Bill. 
 Clauses 9 and 10 ordered to stand part of the Bill. 
Further consideration adjourned.—[Mr. McNulty.] 
 Adjourned accordingly at two minutes to Five o'clock till Tuesday 1 May at half-past Ten o'clock.